THE SAN DIEGO
February 13, 2004
The recent court decision didn't make the
front pages of the nation's newspapers. It
didn't rate a mention on the evening
newscasts. But it could, ultimately, have the
same impact on property rights in America
that, say, Brown v. Board of Education had on
The precedent-setting case involved 275 San
Joaquin Valley farmers whose water was taken
from them by the U.S. Fish and Wildlife
Service a decade ago to accommodate two fish
on the federal endangered species list – the
chinook salmon and the delta smelt.
In 1998, the Tulare Lake Basin Water
Storage District and Kern County Water agency
sued the federal government on behalf of the
aggrieved farmers, to whom they deliver so
many acre-feet of water.
The water districts maintained that the
government's order that they curtail water
deliveries to their farming customers amounted
to a regulatory "taking" of the farmers'
Three years ago, Judge John Paul Wiese of
the U.S. Court of Federal Claims ruled that
the government owed the 275 farmers for their
water losses. And this past New Year's Eve, he
set the amount of damages at $14 million plus
interest (a momentous judgment that received
little notice until a few weeks ago).
Alf W. Brandt, the Interior Department
lawyer who argued the government's case, says
that, in the wake of Judge Wiese's decision,
"There may be implications for how the
Endangered Species Act is implemented."
Indeed, no longer can government regulators
take private property – be it water or,
presumably, land – to protect this snail
darter or that spotted owl with no
consideration whatsoever for the economic loss
that may be suffered by private property
If the government feels that a species is
so endangered that it needs to take a farmer's
water, that it needs to deprive a landowner of
full economic use of his or her land, then the
government ought to pay the farmer, the
landowner for the loss.
After all, the Fifth Amendment states that
private property shall not be "taken for
public use, without just compensation."
Environmental activists insist that the
Fifth's "takings" clause applies only to
property that has been physically taken from a
private property owner.
However, in recent decades, the U.S.
Supreme Court has ruled on several occasions
that the takings clause also applies when
government regulation leaves property in
private hands while restricting (or
forbidding) use of the property.
In 1987, the high court went so far as to
liken a state land-use regulation to
"extortion" in Nollan v. California Coastal
Five years later, the justices issued a
landmark ruling in Lucas v. South Carolina
Coastal Council, declaring that "when the
owner of a real property has been called upon
to sacrifice all economically beneficial uses
in the name of the common good," he or she
must be paid for the regulatory taking.
In a 1994 case, Dolan v. City of Tigard,
the supremes stated that "we see no reason why
the takings clause of the Fifth Amendment, as
much a part of the Bill of Rights as the First
Amendment or the Fourth Amendment, should be
relegated to the status of poor relation."
And in Palazzolo v. Rhode Island, a 2001
case, the justices held that, even though a
property owner acquired title to land after
certain restrictive environmental regulations
took effect, that did not negate his takings
Otherwise, the majority declared, "A state
would be allowed, in effect, to put an
expiration date on the takings clause."
It remains to be seen whether the Justice
Department will appeal Judge Wiese's recent
If it does, the Supreme Court might get its
ripest opportunity yet to resolve the
long-running conflict between environmental
regulation and private property rights.
The justices almost certainly would affirm
the government's authority to regulate the use
of private property – for protection of
endangered species or some other common good.
But they likely would agree with Judge
Wiese that private property owners are
entitled to compensation when government
regulation restricts the reasonable use of
Perkins can be reached via e-mail at